Leonard v. Abbott Labs., Inc.
| Decision Date | 05 March 2012 |
| Docket Number | 10-CV-4676(ADS)(WDW) |
| Parties | SHELLY A. LEONARD, ESTHER ALEXANDER, BRIDGETT HERRERA, VELICIA MATA, LeRON DAVIS, and ASHLEY SULLIVAN, individually and as parents and natural guardians of their minor children and on behalf of all others similarly situated, Plaintiffs, v. ABBOTT LABORATORIES, INC., Defendant. |
| Court | U.S. District Court — Eastern District of New York |
MEMORANDUM OF
DECISION AND ORDER
APPEARANCES:
Blau, Brown & Leonard, LLC
Attorneys for the plaintiffs
By: Jason T. Brown, Esq.
Steven Bennett Blau, Esq., Of Counsel
Patterson, Belknap, Webb & Tyler LLP
Attorneys for the defendant
By: John D. Winter, Esq., Of Counsel
This case arises from the recall by Abbott Laboratories, Inc. ("Abbott" or "the Defendant") of five million containers of its Similac brand infant powder formula that were potentially contaminated with beetle parts and larvae, which could cause gastrointestinal discomfort and refusal to eat. The plaintiffs allege that Abbott engaged in unfair and deceptive practices by misrepresenting the safety of Similac and failing to timely warn consumers of thedangers associated with the contaminated product in violation of the consumer protection statutes in New York, Texas, Ohio, and New Hampshire.
Presently before the Court is a motion by Abbott for judgment on the pleadings and a motion by the plaintiffs to amend the complaint. For the reasons set forth below, the Court grants in part and denies in part both motions.
Abbott Laboratories, Inc. formulates, designs, manufactures, markets, advertises, distributes, and sells infant powder formulas under the brand name Similac. In September 2010, during an internal quality review at its Sturgis, Michigan facility ("the Sturgis Facility"), Abbott detected the presence of a common warehouse beetle and its larvae in its powdered formula. Subsequently, on September 20, 2010, Abbott notified the United States Food and Drug Administration ("FDA"), which determined that "while the formula containing these beetles poses no long-term health problems, there is a possibility that infants who consume formula containing the beetles or their larvae could experience gastrointestinal discomfort and refusal to eat as a result of small insect parts irritating the GI tract". As a result, on September 22, 2010, Abbott recalled five million containers of Similac infant formula products ("the Recall" or "the Recall program"). The details of the Recall program were set forth in the Declaration of Laurie Boogard filed in a related case, Vavak v. Abbott Laboratories, Inc., No. SACV-10-1995-JVS (CD. Cal.), and submitted to this Court as an attachment to Abbott's June 28, 2011 Notice of Supplemental Authority (Docket Entry # 19).
The plaintiffs in this case are: Shelley A. Leonard, a resident and citizen of the State of New York ("the New York Plaintiff); residents and citizens of the State of Texas FstherAlexander, Bridgelt Herrera, and Velicia Mata ("the Texas Plaintiffs"); LeRon Davis, a resident and citizen of the State of Ohio ("the Ohio Plaintiff); and Ashley Sullivan, a resident and citizen of New Hampshire ("the New Hampshire Plaintiff and collectively "the Plaintiffs"). According to the Plaintiffs, they each purchased the recalled formula during an undefined "relevant time period", rather than purchasing a less expensive alternative, based on various statements by-Abbott that indicated that Similac was safe for consumption by infants. The Plaintiffs also allege that their infant children became ill after consuming the contaminated Similac formula.
On October 10, 2010, the Plaintiffs commenced this action against Abbott in their individual capacity, as parents and natural guardians of their minor children, and as representatives of putative classes of similarly situated individuals from their respective states. In the complaint, and the amended class action complaint filed on December 2, 2010, the Plaintiffs seek declaratory, injunctive, and monetary relief based on Abbott's alleged unfair and deceptive acts and practices in misrepresenting that Similac was "safe for the consumption by infants" and failing to warn consumers or recall the contaminated formula sooner, in violation of: (I) New York General Business Law § 349 ("NYCPA"); (2) the Texas Deceptive Trade Practices-Consumer Protection Act ("TDTPA"), Tex. Code. Bus. & Com. § 17.41, et. seq.; (3) the Ohio Uniform Deceptive Trade Practices Act ("ODTPA"), Ohio Rev. Code Ann. § 4165, et. seq., and Uniform Consumer Sales Practices Act ("OCSPA" and together with the ODTPA the "Ohio statutes"), Ohio Rev. Code Ann. § 1345, et. seq.; and (4) the New Hampshire Consumer Protection Act ("NHCPA"), N.H. Rev. Stat. Ann. § 358-A, et. seq. ().
On March 15, 2011, Abbott filed a motion for judgment on the pleadings seeking the dismissal of the Plaintiffs' claims under the consumer protection statutes and the cause of actionseeking injunctive relief for failure to state a claim. In addition, Abbott also sought dismissal of: (1) any claim predicated on Abbot's representation that it is "dedicated to .. . complying with all applicable laws and regulations in the countries where [it] do[es] business" (Am. Compl., ¶ 24), or its failure to comply with certain federal laws, as preempted by federal law; (2) any class claim under the Ohio Uniform Consumer Sales Practices Act because the statute does not permit a class action under the circumstances alleged; (3) any claim under the Ohio Uniform Deceptive Trade Practices Act because the statute does not confer standing on a consumer; and (4) any claim under the Texas Deceptive Trade Practices-Consumer Protection Act because the Plaintiffs failed to provide the requisite notice under the statute.
On September 21, 2011, the Plaintiffs moved to amend their complaint to: (I) include Kristie Pagan in the caption of this matter as a party plaintiff and potential representative of the putative New York class; (2) remove plaintiff Shelly A. Leonard from the caption in this matter and dismiss her claims without prejudice with leave to renew her individual claims or any claims on behalf of her infant/child in the event the Court certifies a class under Federal of Civil Procedure 23; (3) include additional factual contentions "clarifying and amplifying the false, misleading, fraudulent and deceptive business practices employed by [the Defendant]" (Pl.'s Br. at 1); and (4) to remove the allegation expressly waiving the New York Plaintiffs' right to seek punitive damages under New York General Business Law § 349. Attached to the Plaintiffs' motion to amend was a proposed second amended complaint containing these changes.
Subsequently, on January 20, 2012, the Court directed the parties to submit supplemental briefing on whether the Recall program instituted by Abbott mooted the Plaintiffs' claims under the consumer protection statutes, which was an issue raised by Abbott in opposition to the motion to amend.
The Court addresses the two motions below. However, because an analysis of the Defendant's motion for judgment on the pleadings is intertwined with an analysis of the Plaintiffs' motion to amend to add factual allegations, the Court will frame its analysis around the Plaintiffs' motion to amend. Thus, the Court addresses the legal arguments asserted in the Defendant's motion for judgment on the pleadings in conjunction with the motion to amend futility analysis.
On February 18, 201 I, United States Magistrate Judge William D. Wall issued a scheduling order, setting a September 2, 2011 deadline for joining new parties and amending the pleadings. Although the parties subsequently agreed to changes to the discovery cut-off deadlines, the deadline for joining new parties and amending the pleadings remained as September 2, 201 1. Contrary to the Plaintiffs contention, an extension to the discovery deadlines does not automatically extend the deadline to join new parties or amend the pleadings. The Plaintiffs' instant motion to amend was (lied on September 15, 201 I, almost two weeks after the deadline set in the scheduling order. As such, the Court must consider Fed. R. Civ. P. 16(b) ("Rule 16"), which "may limit the ability of a party to amend a pleading if the deadline specified in the scheduling order for amendment of the pleadings has passed." Kassner v. 2nd Avenue Delicatessen, Inc., 496 F.3d 229, 243 (2d Cir. 2007); see Fed. R. Civ. P. 16(b)(4) ().
"Where a scheduling order has been entered, the lenient standard under Rule 15(a), which provides leave to amend 'shall be freely given,' must be balanced against the requirement under Rule 16(b) that the Court's scheduling order 'shall not be modified except upon a showing ofgood cause."' Grochowski v. Phoenix Construction, 318 F.3d 80, 86 (2d Cir. 2003) (). "[A] finding of 'good cause' depends on the diligence of the moving party." Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000). To satisfy the good cause standard "the party must show that, despite its having exercised diligence, the applicable deadline could not have been reasonably met." Sokol Holdings. Inc. v. RMD Munai. Inc., No. 05-CV-3749, 2009 WF 252461 t, at *7 (S.D.N.Y. Aug. 14, 2009) (citing Rent-A-Center Inc. v. 47 Mamaroneck Ave. Corp., 215 F.R.D. 100, 1 04 (S.D.N.Y. 2003)). However, the good cause standard is not satisfied when the proposed amendment rests on information "that the party knew, or should have known, in advance of the deadline." Id. (collecting cases).
If a court finds that good cause for extending the deadline exists, a party still has the burden to show that the proposed...
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...331, 359 (E.D.N.Y. 2014); Pelman ex rel. Pelman v. McDonald's Corp., 396 F.3d 508, 511 (2d Cir. 2005); Leonard v. Abbott Labs., Inc., No. 10 Civ. 4676 (ADS) (WDW), 2012 WL 764199, at *19). However, "a plaintiff still must show that the alleged deceptive acts would mislead a reasonable consu......